United States District Court, S.D. Florida
MICHAEL A. BROWN Petitioner,
STATE OF FLORIDA, Respondent.
REPORT AND RECOMMENDATION OF MAGISTRATE
matter is before the Court upon a petition for writ of habeas
corpus, filed pursuant to 28 U.S.C. § 2254, by the
pro se petitioner, Michael A. Brown, a convicted
state felon, challenging the constitutionality of his
conviction and sentences for robbery with a firearm and, in
the course of the robbery, possession of a firearm, a
first-degree felony, in violation of Fla. Stat. §§
812.13(1), (2) and 775.087(2), the result of a jury verdict
in the Circuit Court of the Seventeenth Judicial Circuit in
and for Broward County No. 01-018623CF10A.
Cause has been referred to the undersigned for consideration
and report pursuant to 28 U.S.C. § 636(b)(1)(B), S.D.
Fla. Admin. Order 2019-2, and the Rules 8(b) and 10 Governing
Section 2254 Cases in the United States District Courts.
Court reviewed the petition along with the exhibits (DE#1)
and the memorandum of law (DE#3) together with the online
state court criminal docketand certain documents contained
therein; and the online appellate dockets of the Fourth
District Court of Appeals (“Fourth DCA”), along
with the respective opinions, for case numbers
4D17-3183 (DE#7-30:1-3), and
4D17-3771 (DE#7-31:1-4), hereinafter
referred to as “Appellate Docket .” The
undersigned did not issue an order to show cause to the State
because it is evident Petitioner is not entitled to habeas
relief since the instant petition is untimely.
seventeen years ago, a jury convicted Petitioner of robbery
with a firearm. (DE#7-3:1). Counsel filed a motion for new
trial which was denied. (DE#7-5:1, 2). The court sentenced
Petitioner to life in prison as a prison releasee reoffender
with credit for time served. (DE#7-6).
appealed to the Fourth DCA in No. 4D02-3518. (DE#7-7:1-3). On
October 22, 2003, the appellate court
affirmed Petitioner's conviction and sentence. Brown
v. State of Florida, 856 So.2d 1116 (Fla. 4th DCA 2003).
did not seek discretionary review from the Florida Supreme
Court. The time for doing so expired thirty (30) days after
the appellate court's affirmance of Petitioner's
conviction, on November 21, 2003. Therefore, his conviction
became final on November 21, 2003.
Petitioner did not seek discretionary review from the Florida
Supreme Court, he is not entitled to an additional ninety
(90) days to seek a writ of certiorari in the Supreme Court
of the United States. Gonzalez v. Thaler, 565 U.S.
134 (2012). See also Sup. Ct. R. 13. However,
assuming without deciding that Petitioner is entitled to
appeal to the Supreme Court of the United States, then,
alternatively, his conviction would become final 90 days
after the Fourth DCA affirmed his conviction, on
January 20, 2004, when the time to appeal to
the Supreme Court of the United States expired.
had only one year to file a federal habeas petition pursuant
to the Antiterrorism and Effective Death Penalty Act
(“AEDPA”) -- no later than January 20,
2005, absent any tolling motions. For purposes of
this Report, the undersigned utilizes the later date because,
even when giving Petitioner this additional time, this
federal petition remains time-barred.
General Principles of Timeliness
Antiterrorism and Effective Death Penalty Act
(“AEDPA”) governs this proceeding. See Wilcox
v. Fla. Dep't of Corr., 158 F.3d 1209, 1210 (11th
Cir. 1998) (per curiam). The AEDPA imposed for the
first time a one-year statute of limitations on petitions for
writ of habeas corpus filed by state prisoners. See
28 U.S.C. § 2244(d)(1). Specifically, the AEDPA provides
that the limitations period shall run from the latest of -
A. the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for
seeking such review;
B. the date on which the impediment to filing an application
created by State action in violation of the Constitution or
laws of the United States is removed, if the applicant was
prevented from filing by such action;
C. the date on which the constitutional right asserted was
initially recognized by the Supreme Court, if that right has
been newly recognized by the Supreme Court and made
retroactively applicable to cases on collateral review; or
D. the date on which the factual predicate of the claim or
claims presented could have been discovered through the
exercise of due diligence.
See 28 U.S.C. § 2244(d)(1).
noted, the Petitioner's conviction became final, at the
latest, on January 20, 2004. This § 2254 motion, dated
October 15, 2018, filed more than 14 years after his
conviction became final, asserts the following claims:
1. Ineffective assistance of counsel for “seven
a. Counsel failed to investigate and present evidence of the
police “manufactured” photo lineup, the result of
a “scheme” designed to identify him as the
perpetrator of the armed robbery. A proper investigation
would have supported a motion for dismissal of the charges
because the ...